FARIDUDDIN Versus WASIF ALI
1. The facts giving rise to this appeal are these: The respondents filed an application under Section 15 of the Sind Rented Premise Ordinance, 1979 (for short, the "Ordinance") in the Court of Fourth Senior Civil Judge and Rent Controller, Karachi (West), on 2nd December, 1986, seeking the eviction of the appellant from the ground floor tenement of House No.III‑H‑2/2, Nazimabad, Karachi (for short, the "demised premises") on the ground of default and personal need. On 3rd February, 1987 he held the service of notice of the said application on the appellant good and since none was present on his behalf, the case was put off to 18‑2‑1987 for written statement. The order dated 3‑02‑1987 passed by the learned Rent Controller reads as under:
2. "3‑2‑1987.
3. Applicant's advocate is present.
4. Notice issued through bailiff returned unserved. Regd. A.D. returned served as per Postmaster's report. Service is held good. None is present for opponent side. Put off to 18‑2‑1987 for W.S."
5. ??????????? (Sd.)
6. ??????????? IV R.C.
7. On 18‑2‑1987 the ex parte proceedings were ordered against the appellant as neither an intimation was communicated to the Rent Controller nor the written statement was filed. The case was then put off to 26‑2‑1987 for ex parte proof. On the later date the respondents filed an affidavit of ex parte proof and the case was then put off to 28‑2‑1987 for orders. The application was allowed as prayed and the appellant was directed to vacate and hand over the vacant possession of the demised premises to the respondents within thirty days. The appellant admittedly did not appear on any of the abovenoted dates.
8. An Execution Application was presented on 6‑4‑1987 which was registered as Execution Application No.10 of 1987. Notices of this application were issued to the appellant for several dates, but remained unserved. The service was ultimately held good on 4th August, 1987 and in the absence of the appellant the case was put off to 19‑8‑1987 for objections. On 19‑8‑1987 it was adjourned to 29‑8‑1987. On the last mentioned date an application for setting aside ex parte order was presented on behalf of the appellant. Notice of this application was issued to the respondents to file objections thereto.
9. The learned Rent Controller vide his order dated 18th November, 1987 dismissed the application for setting aside the ex parte order; hence the appellant has filed this appeal assailing the orders of the learned Fourth Rent Controller dated 28‑2‑1987 and 18‑11‑1987.
10. I have heard the learned counsel for the parties and have also with their assistance perused the orders on the Order Sheet of Rent Case No.1394 of 1986 of the learned Rent Controller. A preliminary objection was raised by Mr. Mahfooz‑ur Rehman, learned counsel for the respondents to the effect that the appeal was time‑barred by 59 days inasmuch as the order of eviction was passed on 28‑2‑1987 whereas the appellant claimed to have come to know of the said ex parte order on 27‑8‑1987. From the date of knowledge, even if it is accepted to be correct, the last date for filing the appeal was 25 th November, 1987, whereas it had actual been filed on 23rd November, 1987. The counsel submitted that Section 5 of the Limitation Act is not applicable to appeals filed under the Ordinance. In support of his contention he placed reliance on a judgment of this Court in 1'Sjred Muhammad v. Mazhar .Alt Khan P L D 1981 Kar.
76. The learned counsel for the appellant also urged that as a matter of fact the application for setting aside the ex parte order of eviction was also barred by six months inasmuch as it was presented on 29th august, 1987 whereas the order of eviction was passed on 28th February, 1987. The appellant had according to him, full knowledge of the ex parte order inasmuch as the appellant had himself received the service of notice sent by registered post to him on 22nd December, 1987, as has been held by the learned Rent Controller vide his impugned order dated 18‑11‑1987:
11. The learned counsel for the appellant, on the other hand, submitted that the appellant learnt about the ex parte order only on 27th August, 1987 as stated by him in his affidavit filed in support of the application for setting aside the ex parte order and hence the said application was presented without any loss of time on 29th August, 1987. The learned counsel submitted that the appeal against the order of dismissal of application for setting aside the ex parte order is also maintainable. The said application was rejected vide order dated 18th November, 1987 and this appeal was presented within four days thereof, i.e. on 23‑11‑1987. In support of his contention the learned counsel for the appellant sought to place reliance on a judgment of the Supreme Court in "Mian Manzar Bashir and others v. M.A. Asghar and Co." P L D 1978 SC 185 and another judgment of the Lahore High Court reported in P L D 1979 Lah.
132. The appellant's counsel also contended that the signature on the postal A.D. on which the learned trial Court has placed reliance is not of the appellant and it is forged. The appellant in fact made an application on 18‑11‑1987 to call the Handwriting Expert to verify that the alleged signature of the appellant on A.D. is forged. This application was, however, not allowed by the learned Rent Controller.
12. I have also heard the learned counsel for the parties on the merits of the case as well as on the merits of the order dated 18‑11‑1987 passed on the application for setting aside the ex parte order.
13. The appeal against the order passed on 18‑11‑1.987 whereby an application for setting aside the ex parte order dated 28‑2‑1987, I was dismissed, has been filed within five days of the order of the learned Rent Controller. It is, therefore, well within time. Mr. Khawaja Mahfooz‑ur‑Rehman, the learned counsel for the respondents has not agitated against the maintainability of the appeal against the said order, and in my opinion, rightly too for the obvious reason that it is now a well‑settled proposition of law by judgment of the Hon'ble Supreme Court in the case of 'Mian Manzar Bashir and others' (supra) that an appeal lies against the order of dismissal of an application for setting aside an ex parte order; whereas no appeal is maintainable against an order whereby an application for setting aside an ex parte order is allowed. In the former case 'the order embraces the whole gamut of the dispute'; whereas. in the latter case it was within ambit of interlocutory order "as it re‑opens the proceedings from the stage it was declared ex parte" so as to provide a reasonable opportunity to the tenant of showing cause against the application. Muhammad Haleem, J. (as His Lordship then was), who wrote the order for the Court in the above case and with whom the other two Hon'ble Judges of the Supreme Court concurred, remarked as under:
14. "Such an order, if I may say so, is seemingly definitive as it has a direct bearing on the whole subject of the controversy concluded by an earlier order and a fortiori, it can be regarded as an order under Section 13 of the Ordinance. It is comparable to an order under Order IX, Rule 13, C.P.C. rejecting an application to set aside the decree passed ex parte which is appealable under Order LXIII."
15. After quoting the other reproduced observations of the Supreme Court, the Lahore High Court at pafp 134 of the report in the case of Farhat Ullah Khan (supra) held as under:‑
16. "It is clear from the aforequoted observations that there is a basic difference between an order by a Rent Controller setting aside an ex parte order of eviction and an order rejecting an application for setting aside such an order. While in the former situation the proceedings are re‑opened from the ex parte stage, giving the tenant opportunity of joining the same and showing cause against eviction application; in the latter the tenant's failure to obtain the re‑opening of the case assumes the character of finalization. That is why such an order has been termed as definitive "having direct bearing on whole subject of controversy concluded by an earlier order and a fortiori, it can be regarded as an order under section 13 of the Ordinance." On the other hand an order setting aside an ex parte order on account of the afore‑explained reason would remain an interlocutory order of the type explained in Ebrahim's case P L D 1975 SC 457 and is not appealable under section 15(1) of the Ordinance."
17. The above discussed decisions of the Supreme Court as well as of the Lahore High Court are in the context of the repealed West Pakistan Urban Rent Restriction Ordinance, 1959 in which the provisions of appeal under section 15 were more restricted or limited in scope than the one contained in Section 21 of the Sind Rented Premises Ordinance, 1979. A right of appeal under section 21 ibid is available to any party who is aggrieved by an order, not being an interim order made by a Rent Controller, whereas under Section 15 of the 1959 Ordinance, as it stood at the relevant time, the right of appeal was available only to any party aggrieved by an order made by the Controller under section 4, 10, 12 or 13 of the said Ordinance.
18. Having reached the conclusion that the appeal against the order dated 15th November, 1987 whereby the appellant's application for setting aside the ex parte order was dismissed is competent, the preliminary objection that the appeal is barred by limitation is held to be of devoid of force and it is accordingly repelled.
19. The ex parte order of eviction dated 28‑2‑1987 was sought to be set aside on the ground that the appellant had never received the notice of filing of the eviction application until 27‑8‑1987 when for the first time the Eviction Notice was served upon him. In the objections to the application filed on behalf of the respondents it was asserted that the appellant was served by registered post A.D‑ as well as by pasting and that he was fully aware of the ejectment case filed against him. The service was held good on 3‑2‑1987 and the case was fixed for written statement on 18‑2‑1987.
20. The learned Rent Controller declined to set aside the ex parte order for the following reasons, as is manifestly discernible from his impugned order dated 18‑11‑1987:‑
(i) That the signatures of the appellant on postal A.D. for 22‑12‑1986 are quite similar to his admitted signatures;
(ii) that even otherwise the appellant in para. 2 of his affidavit filed in support of the application to call Handwriting Expert has stated that he had signed and received the Court notice through A.D. on 22‑12‑1986 and hence there remained no ambiguity regarding the service of notice of ejectment application on him by registered post;
(iii) that the appellant thus negligently and deliberately avoided to appear in the Court;
(iv) that no reason for his non‑attending the Court in compliance of Court notice has been shown in the application for setting, aside the ex parte order;
(v) the application for setting aside the ex parte order having been moved after six months of the ex parte order was hopelessly time‑barred.
21. The abovenoted reasons apparently revolve round the effect of service of first notice of hearing sent through post on 22‑12‑1986. The proceedings of that date as recorded on the Order Sheet of the Rent Case read as under:‑
22. "22‑12‑1986.
23. None is present for any side.
24. Issue notice on cost to the opponent. Put off to 18‑1‑1987.
25. (Sd.)
26. IVth R.C"
27. On the payment of cost by the respondents the second notice of hearing was issued for 18‑1‑1987 and the third notice for 3‑2‑1987. The service of notice of hearing having not been held good on 22‑2‑1S$nothing material would turn on its having been actually received even if it is so presumed fur the sake of argument. The learned Rent Controller has unfortunately completely ignored this aspect of the case and his order is thus obviously fallacious. Even otherwise, upon close scrutiny of the documents and material prevalent on the record of the Rent Case and the Execution Application, none of the reasons assigned by the learned Kent Controller for rejecting the application tar setting aside the ex parte order can be sustained. I am afraid, I cannot also endorse the finding of the learned Rent Controller that the alleged signature of the appellant on the form of postal A.D. is similar to his admitted signatures on the various documents referred to in his impugned order. In my opinion there are marked dissimilarities at various places in the admitted and disputed signatures. The dispute signature on the form of postal A.D. appears to be forged one. This finding also demolishes the remaining abovenotedl reasons given by the learned Rent Controller for rejecting the application for setting aside the ex parte ejectment order. Moreover, while holding on the basis of contents of para. 2 of the appellant's affidavit dated 18‑11‑1987 filed alongwith the application for calling the Handwriting Expert, the learned Rent Controller seems to have completely lost sight of the vital rule of construction that a document must be considered as a whole coupled with the surrounding circumstances. Had he kept these rules in view he would have immediately realised that it was a case where a slip had occurred and the word "not" was accidentally omitted to be inserted in between the words "I have" and "signed and received ? " In para. 3 of this very affidavit .it is again mentioned that "the Urdu signature on the A.D. notice dated 22‑12‑1986 is different from my own Identity Card and that my signatures are to (sic) A.D. has been forged by the opponent to get quick ex parte decree----------------------" Similarly in para. 4 thereof, he has deposed as under:‑----
28. "4. I say that the ex parte order has been obtained on this ground that I received notice through registered A.D. which I solemnly state not to have signed or received and is the result of fraud and forgery played by the applicant to obtain ex parte eviction order/ejectment."
29. The matter does not, in my opinion, end here. There remains yet another aspect to be seen and it is whether the learned Rent Controller has rightly ‑held the service of notice of hearing on the appellant good vide his order dated 3‑2‑1987. Here also I find that the learned Rent Controller has misread the following two postal endorsements appearing on the envelope containing the notice of hearing for 3‑2‑1987 sent to the appellant by registered post A.D. This. envelope exists at page 13 of the Rent Case No.1394 of 1986.
30. Postal Endorsements
31. On the basis of these postal endorsements, the observations of the Rent Controller to the effect that "Regd.A.D. returned served as per Postman's report" is patently incorrect. The envelope was returned unserved and not served as stated by the learned Rent Controller. Thus the service of notice of hearing of the Ejectment Application for 3rd February, 1987 had been wrongly held good. Consequently, the ex parte proceedings adopted against the appellant cannot be sustained on this ground as well. It is tantamount to condemning the` appellant unheard.
32. For the foregoing reasons, the impugned orders, dated 18‑11‑1987 and 28‑2‑1987 are set aside and the case is remitted to the Rent Controller for fresh proceedings according to law:
33. The parties are, however, left to bear their own costs.
34. M.Y.H./F‑70/K ?????????????????????????????????????????????????????????????????????????????????? Case remanded.